The DWI Problem with Proliferating THC Products
Producers and developers of marijuana products are doing their best to make their THC products available to as many consumers in as many states as possible. Their entrepreneurial savvy is a natural part of any business. Who can blame them? But in their efforts to develop and sell new THC products, producers can easily lead consumers to run afoul of drug laws that may or may not be keeping up. And those risks include the possibility of a THC-based DWI charge.
The bottom line is that driving while impaired by drugs, even prescription drugs, remains a Texas crime. Some of the new THC products marketed as legal and harmless may still affect a driver's mental or physical faculties in ways that prosecutors can claim impaired the driver. You could well still suffer DWI arrest and charges for using certain new THC products, even those sold as legal and harmless. If you face DWI charges because of your use of a new THC product, then you need expert defense from Texas DWI Specialist attorney Doug Murphy. You can do no better than to retain Best Lawyers in America's 2021 Lawyer of the Year attorney Doug Murphy.
Marijuana's Delta 9 THC Psychoactive Agent
To understand why you may face DWI charges based on marijuana use for taking a new THC product marketed as legal and harmless, consider a little marijuana pharmacology. Scientists identify the mind-altering, mood-altering, or psychoactive agent in marijuana as Delta 9 tetrahydrocannabinol. We abbreviate tetrahydrocannabinol as THC, a highly significant term in law enforcement and criminal defense. That's where the abbreviation THC comes from. Delta 9 THC is the primary ingredient that gives marijuana its mind-altering, psychoactive effect and reputation among users.
Some users of marijuana products want those products for healing, pain relief, reduced swelling, better range of motion, or other claimed therapeutic effects. They don't care about or don't even want psychoactive effects. But many other consumers of marijuana products are seeking its psychoactive effects. They want the mood change, whether they experience and describe that change as a high, low, buzz, relaxation, or otherwise. Producers of Delta 9 THC products market Delta 9 THC for those psychoactive effects, whether they also market Delta 9 products for therapeutic effects or not.
Delta 9 THC-Based DWI Charges
Because Delta 9 THC has psychoactive effects, prosecutors routinely charge drivers with DWI based on Delta 9 THC blood test results, especially when the arresting officer reports evidence of the driver's impaired mental or physical faculties. Texas Penal Code §49.04 authorizes a DWI whenever the defendant driver does not have normal use of mental or physical faculties by reason of intoxication. Intoxication means more than just drinking alcohol. Texas Penal Code §49.01 defines intoxication as “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body….”
Because of its psychoactive ingredient Delta 9 THC, marijuana clearly falls within Texas Penal Code §49.01's broad definition of a drug capable of affecting “the normal use of mental or physical faculties….” You may face DWI charges based on the use of marijuana or marijuana products leaving in your system the psychoactive agent Delta 9 THC. That's why police are arresting drivers for marijuana-impaired DWI. That's why prosecutors are filing DWI charges based on blood, saliva, or urine test results showing marijuana use. The risk of a marijuana-based DWI charge is real and substantial.
The Currently-Popular Delta 8 THC Product
But DWI charges for having Delta 9 THC in your system aren't the big current question. The bigger question today has to do with new THC products. Remember, producers are constantly creating new THC products. According to the cannabis industry website Leafly, one of the most successful of those new products has been Delta 8 THC. Delta 8 THC is a bit like the little sister of Delta 9 THC. Importantly, producers make Delta 8 THC from the CBD oil in hemp. Hemp is a cannabis plant having less than .3% Delta 9 THC. Hemp's lower Delta 9 THC levels than other cannabis plants mean that the Delta 8 THC drawn from hemp doesn't have the same psychoactive effects as Delta 9 THC.
Depending on the user, Delta 8 THC may have no psychoactive effect at all or only a little effect. Producers claim that Delta 8 THC has therapeutic benefits without the psychoactive effects. Hence, producers sell Delta 8 THC to consumers interested only in improved health, not psychoactive trips. According to some retailers, Delta 8 THC is flying off the shelves, representing as much as fifty percent of product sales. Those consumers believe that they face no risk of marijuana possession charges.
The Legality of the Current Delta 8 THC Products
The legality in most places of Delta 8 THC sales is one of the reasons for its current sales success. Because hemp-based Delta 8 THC isn't particularly psychoactive, when Congress passed the 2018 Farm Bill, it excepted hemp from the regulation of other cannabis plants. You could say that the 2018 Farm Bill legalized hemp-based THC products. Under federal law, hemp products are generally legal. That's one reason consumers see hemp products everywhere in Texas cities like Houston.
States may do as they wish in regulating Delta 8 THC products. Most states have followed the new federal law permitting producers to make and sell Delta 8 THC products. Texas is among those many states that haven't regulated Delta 8 THC. Ask local cannabis shops: for the moment, at least, Delta 8 THC is legal for sale and consumption in Texas. Yet, a few states have already outlawed Delta 8 THC, whether because of its potential psychoactive effects or for other reasons. The huge Texas market for Delta 8 THC products could change quickly, depending on whether the Texas legislature acts. Texas DWI defense attorney Doug Murphy follows these trends closely.
New Delta 10 THC Products
According to the cannabis industry website Leafly, Delta 8 THC, though, is no longer the latest hot cannabis product. Producers haven't stopped at Delta 9 THC and Delta 8 THC products. Producers are always trying new chemicals and new processes to strip the THC out of hemp (not to mention other cannabis plants) to develop and sell new products. Delta 10 THC products are the latest cannabis industry development. According to leading industry websites, Delta 10 is the next big thing in THC products. Like Delta 8 THC, producers make Delta 10 THC from the hemp plant, not other more-potent cannabis plants. Producers simply use different chemicals and processes to extract Delta 10 THC. Delta 10 THC is just another, further-refined hemp product.
You'd think, then, that Delta 10 THC would, like Delta 8 THC, have no psychoactive effects or only weak psychoactive effects. But producers have gone to extra pains to refine Delta 10 THC out of the hemp plant in such a way as to extract, capture, and further concentrate the tiny bit of psychoactive agent that hemp contains. Producers have just gotten better and better at refining hemp. The super-refined (and therefore pricey) Delta 10 THC products thus do have psychoactive effects for many or most consumers. Producers have in Delta 10 THC made a psychoactive product out of hemp containing barely any psychoactive ingredient.
The Legality of the New Delta 10 THC Products
You can probably guess why producers have worked so hard to refine psychoactive Delta 10 THC products out of hemp rather than just using the other psychoactive-rich cannabis plants. Because producers make Delta 10 THC out of hemp, Delta 10 THC products are legal under the federal 2018 Farm Bill, just like Delta 8 THC products. You can almost hear, and certainly imagine, the producers exclaiming eureka! Producers can currently sell psychoactive Delta 10 THC products in states that, like the federal 2018 Farm Bill, make hemp products legal.
With the new Delta 10 THC products, producers have, in effect, opened a vast new legal market, even in states that continue to outlaw traditional marijuana and marijuana's Delta 9 THC products. Depending on the user, Delta 10 THC products might not be quite as psychoactive in their effects as traditional marijuana and its Delta 9 THC products. Time will soon tell, but getting close to the same psychoactive effects in a legal hemp-based product may be well worth it to some producers and their many consumers. Some states have already outlawed Delta 10 THC products. According to the cannabis site Leafly, some Delta 10 THC producers won't sell to other states with unclear laws. But watch for a flood of Delta 10 THC products.
DWI Arrest and Charges Based on Delta 10 THC Use
So far, the above discussion addresses only the legality and psychoactive effects of new Delta 10 THC products. Now consider the impact of Delta 10 THC use on DWI charges. Remember, drug-based DWI charges do not depend on the legality of the drugs. Even lawful prescription drug use can support DWI charges when the prescription impairs the driver's mental or physical faculties. So, just because Delta 10 THC products may currently be legal under both federal law and Texas law, their legality does not mean that one may drive under their influence. To the contrary, if Delta 10 THC use impairs the driver's mental or physical faculties so that the driver does not have their normal use, then prosecutors may charge a DWI under Texas Penal Code §49.01's definition of intoxication.
The bottom line is not to drive with Delta 10 THC in your system, especially if you lose normal use of your mental or physical faculties. Indeed, if you wish to avoid all risk of a THC-based DWI charge, then don't drive with Delta 10 THC in your system at all, whether or not you sense impairment. Don't hand the police and prosecution the chance to make a case against you based on Delta 10 THC test results and alleged observations of lost faculties.
Defending DWI Charges Based on Delta 10 THC Use
Simply because blood tests or other evidence show Delta 10 THC in a driver's system does not mean that the driver is guilty of a DWI charge. Prosecution and conviction for a THC-based DWI charge aren't quite that simple. Texas law does not have a specific level of THC or other drug you may have or must not have in your system, relative to DWI charges. Instead, drug-impaired DWI charges depend on the prosecution proving intoxication under Texas Penal Code §49.01's definition.
That's the whole question about whether the drug caused the driver to lose normal use of mental or physical faculties. In theory, a driver could have a very high level of a highly psychoactive drug in the driver's system at DWI arrest and yet not be intoxicated, if somehow the driver still had normal use of faculties. Just as with alcohol use among heavy drinkers, some people, generally heavy drug users, can ingest a lot more drugs than others before exhibiting psychoactive effects. Don't try it. It's a bad idea. But without evidence of lost faculties, the DWI charge might just fail. And that's how an aggressive defense from expert DWI Specialist attorney Doug Murphy may defend and defeat your Delta 10 THC-based DWI charges.
Remain Silent on Arrest for THC-Based DWI Charges
Facing a DWI charge isn't simply waiting for bad things to happen to you. Instead, you have productive and important things to do after your DWI arrest. Your immediate actions after your DWI arrest can make a difference to your defense. You should be exercising your right to remain silent. Don't speak to the police or prosecution, other than to confirm your identity and address. Instead, retain an expert DWI Specialist to communicate with the court and prosecution, while advising you about your other constitutional rights. Don't try to explain to the police or the prosecution that you were only using a THC product that you believed to be legal and therapeutic. Anything that you say of that sort, the prosecution can and will use against you.
Retain and Rely on Skilled and Experienced Defense Counsel
Ensuring that you do not incriminate yourself while also complying with court procedures and necessary communications about your proceeding is a primary reason why you should promptly retain an expert Texas DWI defense attorney with substantial skill and experience in handling DWI charges based on drug use. You need a skilled DWI defense attorney to handle all criminal procedures.
Once retained, your expert Texas DWI defense attorney will secure evidence on your behalf while demanding that the police and prosecution preserve and produce evidence for inspection. If you have not already faced arraignment, then your expert DWI defense attorney can appear with you to enter a not guilty plea and to confirm the terms and conditions of your release on bond during the proceeding. Your defense attorney will also conduct all communications with the prosecution and court, notifying you of your need to attend any hearings or conferences. Your attorney will also be evaluating the circumstances of your arrest and how police gained any incriminating evidence, to file and argue a motion to suppress for any violation of your constitutional rights.
You will also likely need to request an administrative ALR hearing within fifteen days, to preserve your driver's license. Your DWI defense attorney can help you make that request and can appear with you for that administrative hearing. Your DWI defense attorney can also advise you about positive steps you can take, including whether to seek deferred adjudication and to participate in a drug or alcohol treatment program, if doing so could help with your DWI charges. These are but a few of the many things that your DWI defense attorney can do for you for the best possible outcome of DWI charges.
Retain an Expert DWI Specialist to Defend THC-Based Charges
You can see from the above lengthy discussion of THC issues that understanding the law and pharmacology of drug-based DWI charges is not easy. The cannabis industry is itself complex, with its many products developed from different processes and its patchwork state-by-state regulation. Knowing the pharmacology of THC in its various forms, and how DWI laws apply to THC use, takes special knowledge, skill, and experience.
If you face THC-based DWI charges, or DWI charges involving other drugs, then retain premier Texas DWI Specialist attorney Doug Murphy. Fellow lawyers voted attorney Doug Murphy Best Lawyers in America's 2021 Lawyer of The Year. Attorney Murphy is one of only two Texas lawyers holding both DWI Board Certification and Criminal Law Certification. When you need a winning DWI defense, especially for charges so complicated as a THC-based DWI, choose attorney Murphy. Don't delay. Find out now what you can learn at an initial consultation with attorney Murphy. Take this quiz on choosing the right DWI lawyer, and you'll recognize that attorney Murphy is the right lawyer. Contact Doug Murphy Law Firm online or at (713) 229-8333 to discuss your case today.